CONTENTS
1. Introduction
The Care and Statutory Support Guidance advises that the priority in safeguarding should always be to ensure the safety and wellbeing of the adult. Making Safeguarding Personal is a person-centred approach, in which adults are encouraged to make their own decisions and are provided with support and information to empower them to do so. This approach recognises that adults have a general right to independence, choice and self-determination including control over information about themselves (see also Making Safeguarding Personal chapter).
The adult experiencing, or at risk of abuse or neglect should be provided with accessible information to support informed decision making about safeguarding, including what it means, risks and benefits, and possible consequences to support them in making decisions around their safety.
In some circumstances, where risks are assessed as unreasonably high, impacting others, and/or there is potential for criminal investigation, consideration should be given to the grounds for overriding consent.
It is best practice to seek and obtain the adult’s consent. If there is reasonable cause to doubt Mental Capacity, then a mental capacity assessment is required. The Mental Capacity Act (2005) makes it clear that the practitioner’s role is to establish whether a person has mental capacity to make decisions in relation to a specific matter, at a specific time, following the two-stage test set out in the Act. For more information see Mental Capacity chapter.
If an adult is assessed as lacking the mental capacity to engage in the safeguarding enquiry process, practitioners may need to override consent if it is agreed that it is in the person’s best interests for the safeguarding process to commence. In this situation, practitioners should also consider how the adult may still be able to participate in the decision-making process.
During the discussion with the adult who is experiencing or at risk of abuse and neglect, the following points should be considered:
- Does the adult consent to the protective measures being discussed and planned?
- Does the adult consent to information sharing on a need-to-know basis?
- Decisions regarding consent involve the adult demonstrating an understanding of:
- What harm has occurred
- The risks and consequences of the harm, and:
- Protective measures and what they entail.
2. If Consent is Withheld
An adult may withhold their consent for several reasons. For example, they may be frightened of reprisals, or fear that relationships may be damaged. Reassurance and appropriate support may help to change their view. If the adult withholds their consent to the safeguarding enquiry process, practitioners should:
- Explore the reasons for the adult’s objections – what are they worried about?
- Provide explanations about the enquiry and why it is required.
- Provide reassurance that support is available.
3. Overriding Refusal to give Consent
There may be cases where the risk has been assessed as unreasonably high, or others may be at risk. If after discussion and consideration of the above, the adult experiencing or at risk of abuse or neglect refuses intervention to support them with a safeguarding concern, or requests that information about them is not shared with other safeguarding partners, there are situations where consent could be reasonably overridden, including when:
- Other people are or may be at risk (meaning it is in the public interest for information to be shared).
- The risk is unreasonably high, and it is in the adult’s vital interests.
- The person lacks mental capacity, and a best interests decision has been made.
If consent is overridden, the adult should be informed of the reasons why consent has been overridden, and this discussion and the rationale should be clearly documented.
4. Working with Unwise Decisions
Making Safeguarding Personal does not mean walking away if a person refuses support. Practitioners must balance a person’s autonomy and rights to live their life how they choose, with the statutory duty of care. If the criteria set out in Section 42 (1) of the Care Act is met, and the risk warrants overriding of consent, practitioners must follow with safeguarding enquires.
Some key things to remember:
- Article 8 (Right to Private and Family Life) of the Human Rights Act (1998) is a qualified right, and can be overridden by the state for ‘lawful and legitimate’ aims.
- A person’s mental capacity (MCA 2005) and ability to make unwise decisions does not override statutory duties set out in Section 42 of the Care Act (2014).
- Whilst adults are not legally bound to work with safeguarding services, practitioners are legally bound to make enquiries, offer support, and prevent and reduce abuse and neglect.
5. Working with Unwise Decisions where there is no Identified Criteria to Override Consent
If a concern has been raised, the person has mental capacity and does not want any involvement from the local authority, and after adequate fact finding the risks do not warrant the overriding of consent, practitioners must still record the identified risks and details of the support that has been offered.
The key components of the Care Act (prevent, reduce, delay) apply to safeguarding practice and the local authority must uphold its duty to provide information and advice. It is important to reiterate to people that they can come back for support when they are ready and should be provided with information on how to do this.
Relationship-based practice is key to all safeguarding practice, and particularly with people who do not want outside support. It is vital practitioners are transparent about their professional responsibility to balance a person’s wishes with the local authority duty of care, and explain what is being done, and why they are doing it at every stage of the safeguarding process.
It is also important for practitioners to record clearly and accurately the conversations held and the person’s response to ensure full accountability of all actions.
